DECISION ON THE DEFENCE MOTION FOR INDICATING THAT THE FIRST AND SECOND
SCHEDULE TO THE INDICTMENT DATED 10TH OCTOBER 2001 SHOULD BE CONSIDERED
AS THE AMENDED INDICTMENT

________________________________________________

Office of the Prosecutor:

Mr Mark Ierace

Counsel for the Defence:

Ms. Mara Pilipovic

Mr. Pilleta-Zanin

I. INTRODUCTION

Pending before this Trial Chamber of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since
1991 (“International Tribunal ”) is the “Defence’s Request for Indicating
that First and Second Schedule to the Indictment Dated 10th October 2001 Should
be considered as the Amended Indictment ” (the “Request”), dated 12 October
2001. This Request objects to the “Prosecutor’s Filing of Revised Schedules
to the Indictment” in which the Prosecution presents a revised list of specific
shelling and sniping incidents contained in the First and Second Schedules
to the indictment.

THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions of the
parties ,

HEREBY ISSUES ITS WRITTEN DECISION.

II. DISCUSSION

A. The Schedules annexed to the Indictment

1. On 26 March 1999, an indictment was filed against Stanislav Galic for his
alleged responsibility as a commander in the shelling and sniping against Sarajevo,
from 10 September 1992 to 10 August 1994 (“the Indictment”). He is charged with
violations of the laws or customs of war for unlawfully inflicting terror upon
civilians (Count 1), crimes against humanity and violations of the laws or customs
of war for a campaign of sniper attacks upon the civilian population of Sarajevo
(Count 2, murders as crimes against humanity; Count 3, inhumane acts as crimes
against humanity, Count 4, attacks on civilians as a violation of the laws or
customs of war), and a campaign of artillery and mortar shelling onto civilian
areas of Sarajevo (Count 5, murders as crimes against humanity, Count 6, inhumane
acts as crimes against humanity; Count 7, attacks on civilians as violations
of the laws or customs of war).

2. Two Schedules are annexed to the Indictment (“the Schedules”). The First
Schedule lists specific sniping incidents, while the Second Schedule lists specific
shelling incidents. Each incident mentioned in the Schedules provides the date
and area where the incident took place, as well as the number and the name,
if known, of the victims .

3. The Indictment specifies in its paragraph 15 that “[a]ll Counts [...] allege
the totality of the campaigns of sniping and shelling against the civilian population
but the scale was so great that the Schedules to the individual groups of counts
in this indictment set forth only a small representative number of individual
incidents for specificity of pleading”. The indictment further states under
each group of counts that “specific instances of these attacks include, by way
of representative allegations, those matters set forth in the First/Second Schedule
to the indictment ”.

4. In the course of the status conference held on 15 March 2001, the Prosecution
informed the Chamber and the Defence of its intention to delete some specific
incidents listed in the Schedules. It further indicated that it was still considering
whether it would add further incidents and, if it decided to do so, would inform
the Chamber and the Defence within a month. The Defence took note of the time
limit indicated by the Prosecution.1

5. On 10 October 2001, i.e. five days before the deadline set out by the Chamber
for the Prosecution to file its pre-trial brief, the Prosecution filed two revised
Schedules to the indictment.

6. With respect to the First revised Schedule, the Prosecution added five
new incidents, deleted ten incidents and provided further details in four instances.
All incidents fall within the period of time covered by the indictment. The
first added incident refers to a sniping incident in an area which was not mentioned
in the original First Schedule.2
The second , third, fourth and fifth events refer to sniping incidents which
took place in areas mentioned in the previous First Schedule within several
months of the time mentioned as to the original incidents in those areas.3

7. In the Second revised Schedule, the Prosecution deleted one incident and
provided further details and corrections with regard to the remaining incidents.
No new incident is described in the Second revised Schedule.

B. Arguments of the Parties

8. The Defence submits that the Schedules form part of the Indictment and that
the revised lists amount to an amendment and supplement of the indictment. It
asserts that the Prosecution should be ordered to request leave to amend the
Indictment, pursuant to Rule 50(A)(i)(c), and the Defence be granted a further
period of 30 days in order to possibly file preliminary motions on the form
of the indictment pursuant to Rule 50(C). It further requests that the deadline
set out by the Chamber for the parties to file their pre-trial Briefs be postponed
accordingly.

C. Analysis

9. The Trial Chamber must first determine whether the information entailed
in the Schedules form an integral part of the indictment.

10. The Chamber notes that Trial Chamber III found, in The Prosecutor v.
Damir Dosen and Dragan Kolundzija, that the attachment annexed to the indictment
of this particular case formed part of the indictment.4 However, the question as to whether annexes form part of
the indictment cannot be answered before considering the content of those annexes.

11. Article 18 of the Statute provides that “the Prosecutor shall prepare
an indictment containing a concise statement of the facts and the crimes with
which the accused is charged under the Statute”. Rule 47(C) of the Rules of
Procedure and Evidence reasserts this requirement and provides that “the indictment
shall set forth the name and particulars of the suspect, and a concise statement
of the facts and of the crime with which the suspect is charged”.

12. The Tribunal has interpreted these rules as requiring that the indictment
entails a “concise statement of the facts of the case and of the crime with
which the suspect is charged”.5

13. The Tribunal has further recognised on several occasions that, although
the particular indictment should have provided as much detail as possible, the
massive scale of the crimes with which it had to deal made it impracticable
to require a high degree of specificity.6

14. The Kupreskic & al. Trial Judgement, referring to the crime of
persecution , however emphasised that “the Prosecution cannot merely rely on
a general charge of ‘persecution’ in bringing its case. This would be inconsistent
with the concept of legality. To observe the principle of legality, the Prosecution
must charge particular acts [...]. These acts should be charged in sufficient
detail for the accused to be able to fully prepare their defence”.7 This also stems from the right of the Defence, according
to Article 21.4(a) of the Statute, “to be informed promptly and in detail [...]
of the nature and cause of the charge against him”.

15. In view of these requirements, Trial Chamber II distinguished between
material facts, which should all be contained in the indictment, and evidence
adduced at trial to prove the material facts, which are not required to appear
in the indictment .8 While alteration
of any material fact qualifies as an amendment of the indictment, addition or
alteration of evidence does not. However, there should be clear limits to the
possibility for the Prosecution to add victims and incidents even if considered
of mere evidentiary value.

16. Trial Chamber II used two criteria to determine whether a particular incident
and the identity of a victim was a material fact or evidence: the degree of
proximity of the accused to the crime alleged and the generality of the offence
charged.9 An incident not pleaded
in the indictment could be admitted as evidence if the crime alleged is general
and the accused person is remote in proximity from the crime alleged. Such incident
could indeed corroborate the facts included in the indictment and help establish
the existence of a consistent pattern of conduct, as envisaged in Rule 93 of
the Rules of Procedure and Evidence. Trial Chamber II specified however that
admissibility of such evidence was subject to sufficient notice given to the
Defence: where “the Prosecution seeks to lead evidence of an incident which
supports the general offence charged, but the particular incident has not been
pleaded in the indictment in relation to that offence, the admissibility of
the evidence depends upon the sufficiency of the notice which the accused has
been given that such evidence is to be led in relation to that offence”.10

17. The Chamber thus considers that while the Prosecution was bound to provide
details about some of the sniping and shelling incidents in the Indictment,
it was under no obligation to list all of the specific incidents.

18. The Chamber however finds that the Prosecution is not at liberty to amend
the Schedules and that the Chamber has to verify whether the alterations brought
to the Schedules amount to an amendment.

19. The Chamber accepts that the Prosecution has deleted some incidents from
the original Schedules. The elements added to the Second Schedule merely add
to or correct specific information which was already contained in the original
Schedule. For this reason, the Chamber finds that the changes added to the Second
Schedule do not constitute a change of the material facts charged against the
accused and do not alter the plea entered by the accused at his initial appearance.
Further, the changes added do not prejudice the preparation of the Defence who
was informed from the outset of the incidents which would be presented at trial.

20. With respect to the incidents added to the First Schedule, the Chamber
finds that the added incidents which refer to approximately the same area and
time frame as those incidents mentioned in the original First Schedule do not
alter the plea entered by the accused. Consequently, the incidents 2, 3, 8 and
16 are admitted.

21. Incident 1 is said to have taken place in an area not mentioned in the
original First Schedule. The Chamber considers that the addition of incident
1 in the First Schedule amounts to an amendment to the indictment for which
leave to amend should have been requested by the Prosecution, pursuant to Rule
50 of the Rules of Procedure and Evidence.

22. The Chamber emphasises that it goes contrary to a sound administration
of justice to indefinitely authorise leave to amend the indictment. In the present
case, the Chamber notes that the amendment was submitted several months after
the Prosecution announced its intention to do so and only few days before the
deadline set forth by the Chamber for the submission by the Prosecution of its
pre-trial brief. To admit the amendment would necessarily disrupt the Scheduling
Order issued on 5 October 2001 and unduly postpone the start of the trial. A
sound administration of justice thus requires that the indictment be stabilised.
For those reasons, the Chamber cannot authorise an amendment to the indictment
at this stage of the proceedings .

23. The Chamber recognises however that this incident can be used by the Prosecution
as corroborating evidence of a consistent pattern of conduct, pursuant to Rule
93, provided that sufficient notice is given to the Defence, a requirement which
is met here.

III. DISPOSITION

For the foregoing reasons,

PURSUANT TO Article 21 of the Statute and Rule 50 of the Rules
of Procedure and Evidence,

THE TRIAL CHAMBER HEREBY

ADMITS the alterations brought to the Schedules and, in particular,
the added incidents numbered 2, 3, 8 and 16 in the First revised Schedule;

REJECTS the added incident numbered 1 in the First revised Schedule
and

RECOGNISES that the incident numbered 1 can be used as corroborating
evidence of a consistent pattern of conduct.

Done in English and French, the English version being authoritative.

______________________

Almiro Rodrigues

Presiding Judge

Done this 19 October 2001

At The Hague,

The Netherlands.

(Seal of the Tribunal]

1 - Transcript of the
15 March 2001 hearing, at 326. 2 - Incident 1 refers to sniping that occurred in the area of
Novo Sarajevo, on 7 November 1992. 3 - Incident 2 refers to sniping that occurred in the Sirokaca
area of Sarajevo on 13 December 1992. Incident 11, already listed in the original
schedule, is also said to have taken place in this area, on 7 September 1993.
Incidents 3 and 8, which are said to have taken place in the Sedrenik area. Incident
described at 16, refers to sniping that occurred in Bulbulistan Street on 13 November
1993. The original schedule already listed the death of a woman by sniping in
the same street on 2 November 1993. 4 - The Prosecutor v. Damir Dosen and Dragan Kolundzija,
Decision on Preliminary Motions, IT-95-8-PT, 10 February 2000, para. 9. 5 - The Prosecutor v. Dusko Tadic, Decision on the Defence
Motion on the Form of the Indictment, IT-94-1-T, 14 Nov. 1995; The Prosecutor
v. Delalic & al., Decision on Motion by the Accused Zejnil Delalic Based on
Defects in the Form of the Indictment, IT-96-21-T; The Prosecutor v. Zlatko
Aleksovski, Decision of Trial Chamber I on the Defence Motion of 19 June 1997
in Respect of Defects in the Form of the Indictment, IT-95-14/1-PT, 3 Oct. 1997;
The Prosecutor v. Delalic & al., Decision on Motion by the Accused Hazim
Delic Based on Defects in the Form of the Indictment, IT-96-21-T, 15 Nov. 1996.
6 - See for instance The Prosecution v. Kvocka & al.,
Decision on Defence Preliminary Motions on the Form of the Indictment, IT-98-30,
12 April 1999, para. 17; see also The Prosecutor v. Radoslav Brdanin & Momir
Talic, Decision on Form of Further Amended Indictment and Prosecution Application
to Amend, IT-99-36-PT, 26 June 2001, para. 61. 7 - Kupreskic & al. Trial Judgement, IT-95-16-T, 14 January
2000, para. 626. 8 - The Prosecution v. Krnojelac, Decision on the Defence
Preliminary Motion on the form of he Indictment, 24 February 1999, para. 12. 9 - Ibid., para. 59 (“the identity of the victims [...]
are not material facts [...] where the accused person is remote in proximity from
the crimes alleged to have been committed” and para. 61 (“where [...] the offence
charged, such as persecution and other crimes against humanity, almost always
depends upon proof of a number of basic crimes, the Prosecution is not required
to lay a separate charge in respect of each murder”(emphasis added). 10 - para. 62.